Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Tuesday, January 11, 2005

People v. Hinkel (Cal. App. - January 11, 2005)

Proposition 36 entitles a defendant to expunge his conviction for a nonviolent drug offense if he complies with the terms of his probation and successfully completes a drug treatment program. The latter phrase is defined by Section 1210(c) as having "completed the prescribed course of drug treatment and, as a result, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future."

Justice Hull in Hinkel holds that even if a defendant successfully completes both probation and his treatment program, Proposition 36 still doesn't apply if the judge finds that the defendant isn't actually rehabilitated; i.e., that he's still likely to abuse drugs. This is a facially plausible interpretation of the statute, the strongest argument in favor of which is that a contrary interpretation would make the second clause of Section 1210(c) redundant: that it would rewrite the statute so that a defendant need only "complete[] the prescribed course of drug treatment" in order to obtain an expungement, thereby making the remainder of paragraph (c) irrelevant.

True enough. But I'm not sure that Justice Hull's reading is any better. Does he really mean (for example) that a defendant who has an epiphany prior to entering treatment that convinces him to never again use drugs isn't covered by Proposition 36 either -- even after he completes probation and treatment -- since he did not decide to quit drugs "as a result" of the treatment program, but rather as a result of his pre-treatment epiphany? Such a result would make no sense.

Some statutes simply do contain redundant passages. Indeed, this may especially be the case with initiatives, which (1) are more likely than legislative statutes to be written by lay or less-expert sponsors, and (2) may be drafted with a particular eye towards the reaction of the voting public.

It seems quite plausible that Proposition 36 might properly be read to mean that once a defendant has indeed "completed the prescribed course of drug treatment," there is -- "as a result" -- automatically (as a result of the treatment) at least "reasonable cause" to believe that he will not abuse drugs in the future. After all, that's the whole point of the program; surely completing the program gives one at least some basis for believing that the defendant may in fact go straight.

That the drafters of Proposition 36 might attempt to persuade voters to vote for the initiative by indicating in its text that completing a treatment program gives a reasonable basis for believing that the defendant will stop using drugs seems quite plausible. So I'm not entirely sure that Hinkle gets Proposition 36 right. (Mind you, I might well prefer an initiative that grants an expungement only if the judge believes that the defendant will in fact go straight, but I can easily see the counterargument that those who voted for Proposition 36 might have intended: that the defendant should be given a second chance, without the burden of a criminal record, so long as he gets treatment and completes probation, regardless of what a particular judge -- perhaps erroneously -- thinks about the defendant's chance of future success.)